Wall and ANOR v Baclon Pty Ltd (Residential Parks) [2012] NSWCTTT 281 (19 July 2012)

CONSUMER, TRADER AND TENANCY TRIBUNAL
Residential Parks Division

APPLICATION NO:	
RP 12/24833 and ors	

APPLICANTS:	
Ken Wall and 166 other applicants	

RESPONDENT:	
Baclon Pty Ltd	

HEARING:	
20 June 2012 at Tweed Heads	

APPLICATION:	
Excessive rent increase	

APPEARANCES:	
Ms Urquhart on behalf of the applicants
Ms Lowe on behalf of the respondents
	
LEGISLATION:	Residential Parks Act 1998
	
______________________________________________________________

ORDERS

1.	The Tribunal orders that the rent payable under the residential site agreement is not to exceed $144.00 for a period of 12 months from 1 July 2012.

REASONS FOR DECISION

1.	On 12 April 2012 the respondent park owner served a valid notice increasing the site rent by $6.00 to $146.50 to take effect on 1 July 2012.

2.	The applicants filed an application that the rent increase was excessive within the prescribed time.

3.	Both parties entered the conciliation in good faith but no agreement was reached and the Tribunal embarked on the hearing. 

4.	The following determination is made having regard to the provisions of the Residential Parks Act 1998 section 57 and the written and oral evidence presented by the parties. 

The general market level of rents for comparable premises in the same residential and in other residential parks in the locality or similar locality

5.	The applicants have provided an extensive list and evidence of residential parks that are in the same locality or alternatively have a similar geographical location to the Noble Lakeside Village. This evidence includes a schedule of amenities.

6.	Recent findings of the Tribunal have found that the residential park that is comparable on the basis of locality, facilities and site fees is Palm Lake Resort at Banora Point. I see no reason on the current evidence provided to depart from those findings.

The value of the residential premises

7.	The applicant provides evidence of re-sale values of homes at the relevant residential parks which is not in dispute.

Frequency and amount of past rent increases

8.	It is an agreed fact that the rent increases are as follows:

2007	$4.83	
2008	$5.00	
2009	$6.00	
2010	$9.00	
2011	$6.00	

General price Index

9.	It is an agreed fact that the Consumer Price Index for Sydney was 
1.6	per cent for the relevant period.

Conduct of the parties

10.	The applicants submit that the evidence provided by the respondent in proceedings of 2011 may have misled the Tribunal and that this should be taken into account and revisit that issue in this determination. The Tribunal is not prepared to consider the evidence of the 2011 proceedings in this determination. The applicants have not pursued the appropriate available remedies.

The amount of any outgoings in respect of the residential premises required to be borne by the park owner

The estimated cost of any services provided by the park owner or the resident 

The value and nature of any fittings, appliances or other goods, services or facilities provided with the residential premises

The accommodation and amenities provided in the residential premises and the state of repair and general condition of the premises

11.	The residential park presents as a well maintained park with some minor issues such as a road drainage grate that took some time to remedy, poles on the tennis court that have suffered rust and deterioration and some issues with the club house.

12.	The respondent has provided as evidence of costs, an income and expenditure statement of Baclon Pty Limited prepared by Rosenfeld Kant & Co, Chartered Accountants.

13.	There is no evidence to support the potential increase in costs and the Tribunal accepts the submission by the applicant that the Tribunal should disregard the unsupported claim of those projected expenses.

14.	The Tribunal accepts that the evidence shows there has been some increase in the overall expenses. The schedule for 2012 is for 11 months only and it is difficult on the material provided to ascertain what expenses have been fully paid for the 12 month period and what may be incurred during the balance of the twelve month period. This hindered any structural method of calculating or assessing the expenses even on a monthly basis. 

15.	Other issues raised were the issue of the notice board which was canvassed in the prior decision and will not be revisited in this determination and the access to digital television which the respondent would appear to have little control over and the implementation may require further negotiation or may form the basis of further proceedings if a breach of the agreement could be identified.

16.	Having regard to the material provided I am satisfied that the most relevant evidence is the consumer price increase for the period in issue and I further accept that the respondent has incurred increased costs, in particular the utility and statutory costs such as rates which may exceed the consumer price index but not to the extent of the proposed rent increase. 

17.	I make an order that the rent be determined at $144.00 per week from 1 July 2012 to 30 June 2013. 

P Smith
Member
Consumer, Trader and Tenancy Tribunal

19 July 2012